Summary Probate for Small Estates

If the value of an estate is less than $100,000, California law provides a way to transfer the assets of the decedent without formal probate. The procedure is outlined in Probate Code section 13100, a process sometimes called a “small estate affidavit.” This method can be used to distribute assets such as cash accounts, stock, bonds, personal property, or even real property if valued below the limit.

How do you calculate whether the estate is valued at less than $100,000? The assets of the decedent that must be counted are bank accounts, brokerage accounts, stocks, bonds, mutual funds, real property, other investments, and personal property. Assets that you don’t have to count are property in joint tenancy, assets held in trust, IRAs, 401(k)s, and other pension plans, life insurance proceeds, automobiles, and payable on death (POD) accounts.

What is required to transfer assets? The process requires an affidavit with information about the gross value of the decedent’s real and personal property, the allegation that the decedent’s assets do not exceed $100,000, and that 40 days have passed since the decedent’s death. The person completing the affidavit, the “affiant” must also allege that there has not been a probate administration, must describe the property to be transferred and allege that the affiant(s) are the persons entitled to the property as the beneficiaries under a will or because they are heirs of the decedent who had no will. The affidavit must be signed under penalty of perjury and notarized. Sometimes banks or companies which hold stock will also require that the beneficiaries or heirs get their signatures guaranteed by a medallion. The affidavit and other paperwork is sent to the institution that holds the assets who then transfer the assets into the names of the beneficiaries or heirs.

The small estate affidavit procedure should not be used when there are significant assets in the decedent’s estate (more than $100,000) or where there is significant debt. The procedure should also not be used there the estate is insolvent or close to insolvent because the estate can benefit from the creditors’ claims procedures available with ordinary probate. Ordinary probate may also be necessary if the beneficiaries or heirs dispute how the property should be distributed.

For other questions about California probate, contact us at Scott C. Soady, A Professional Corporation. We can answer all your probate questions and guide you through probate or one of the summary probate procedures.

Attorney AdvertisingTo ensure compliance with IRS regulations, we inform you that any tax advice contained in this communication is not intended to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing, or recommending to another party any transaction or matter discussed herein. Additionally, some postings may be back dated and no reliance can be placed on the state of the law still being the same.